Citation Nr: 1203030
Decision Date: 01/27/12 Archive Date: 02/07/12
DOCKET NO. 09-26 188 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota
THE ISSUES
1. Entitlement to service connection for a left knee disorder, claimed as secondary to service-connected residuals of post-operative spondylothesis, with neurological deficit of the left lower extremity.
2. Entitlement to service connection for a right knee disorder, claimed as secondary to service-connected residuals of post-operative spondylothesis, with neurological deficit of the left lower extremity.
REPRESENTATION
Appellant represented by: Paralyzed Veterans of America, Inc.
ATTORNEY FOR THE BOARD
Anthony M. Flamini, Counsel
INTRODUCTION
The Veteran served on active duty from May 1969 to December 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office in Sioux Fall, South Dakota (RO).
The issues of entitlement to service connection for an acquired psychiatric disorder, a left ankle disorder, residuals of a stroke, and a sleep disorder, as well as whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for bilateral hearing loss, have been raised by the record, but have not been adjudicated by the RO. Moreover, the issues of entitlement to separate evaluations for the Veteran's neurologic manifestations of his service-connected back disorder, and entitlement to a total rating for compensation purposes based upon individual unemployability have also been raised by the record, but have not been adjudicated by the RO. Therefore, the Board does not have jurisdiction over these issues, and they are referred to the RO for appropriate action.
The appeal is remanded to the RO via the Appeals Management Center in Washington, DC.
REMAND
The Veteran seeks entitlement to service connection for a left knee disorder and a right knee disorder, both claimed as secondary to service-connected residuals of post-operative spondylothesis with neurological deficit of the left lower extremity.
The Veteran injured his back in service. His symptoms progressed to the point where he was completely incapacitated and he subsequently underwent a Gill-type resection of a portion of L5, bilateral nerve root exploration, and posterolateral fusion using an iliac bone graft prior to receiving a medical discharge from the military. Service connection is currently in effect for residuals of post-operative spondylothesis with neurological deficit of the left lower extremity, as well as a neurological deficit of the left side as a result of his in-service back injury. The Veteran claims that his current bilateral knee disorders are the result of his service-connected back disorder. In a May 2010 personal statement, he claimed that his attending physician at the time of the in-service back surgery advised him that a long-term consequence of the injury and subsequent surgery would be the likely failure of his hip and knee joints in the future.
The Board finds that a remand is necessary for additional development before these claims can be adjudicated. First, the RO's most recent supplemental statement of the case addressing the issues on appeal was issued in August 2009. In May 2010, the Veteran submitted a February 2010 correspondence in which a private physician opined that it was a medical certainty that all of his "worsening medical difficulties" were direct result of the January 1971 accident he sustained during active duty service. A waiver of RO consideration of this evidence is not in the claims file, however. Accordingly, the Board must return these matters to the RO for consideration of the additional evidence and issuance of a supplemental statement of the case. See 38 C.F.R. § 19.31 (2011).
In addition, the Veteran was afforded a VA joints examination in June 2009. The examiner diagnosed status post arthroscopy of the left knee with partial medial meniscectomy and medial debridement and opined that the disorder was not caused by or aggravated by his service-connected disorders. The basis for this opinion was that he had no complaints of left knee problems until 2007 when he twisted it on uneven terrain while hunting. However, this opinion does not provide a rationale as to why his back disorder does not aggravate his left knee disorder. Moreover, the June 2009 VA examiner only addressed the Veteran's left knee and did not examine or provide an opinion as to the etiology of any right knee disorder. As such, a medical examination is necessary to determine the etiology of the Veteran's currently diagnosed right knee disorder. 38 C.F.R. §§ 3.159, 3.326 (2011); see Littke v. Derwinski, 1 Vet. App. 90, 93 (1990).
Accordingly, the case is remanded for the following actions:
1. The RO must contact the Veteran to provide him an opportunity to identify all VA and non-VA medical providers who have treated him for his bilateral knee disorders. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain the identified records, the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) notify the Veteran that that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond.
2. The Veteran must then be afforded an appropriate VA examination to determine the etiology of his current right and left knee disorders. The claims file must be provided to and reviewed by the examiner in conjunction with the examination. All pertinent symptomatology and findings must be reported in detail. All tests or studies necessary to make these determinations must be conducted. Following a review of the claims file, the service and post-service medical treatment records, a clinical evaluation of the Veteran, and with consideration of the Veteran's statements, the examiner must provide an opinion as to whether the Veteran's diagnosed right and left knee disorders are related to his military service. The examiner must also provide an opinion as to whether the Veteran's right and left knee disorders are due to or aggravated by a service-connected disorder, to include residuals of post-operative spondylothesis, with neurological deficit of the left lower extremity. In rendering these opinions, the examiner must consider and comment upon the February 2010 correspondence submitted by the Veteran, in which a private physician opined that it was a medical certainty that his "worsening medical difficulties" were a direct result of an accident he sustained during active duty service. The examiner must provide a complete rationale for all opinions expressed. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether an opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report prepared must be typed.
3. The RO must notify the Veteran that it is his responsibility to report for the VA examination scheduled, and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2011). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the Veteran's last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. Copies of all documentation notifying the Veteran of any scheduled VA examination must be placed in the Veteran's claims file.
4. After completing the above actions, and any other development as may be indicated, the claims remaining on appeal must be readjudicated, with consideration of all evidence associated with the claims file since the most recent supplemental statement of the case addressing each such issue in August 2009. If any claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review.
No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999).
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JOY A. MCDONALD
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2011).